In re Stewart

Supreme Court of Georgia

May 15, 2017

IN THE MATTER OF THOMAS E. STEWART.

PER
CURIAM.

This
disciplinary matter is before the Court on the Report and
Recommendation of the Review Panel of the State Bar,
recommending that Thomas E. Stewart (State Bar No. 681875),
who has been a member of the Bar since 1995, receive a Review
Panel reprimand for two violations of the Rules of
Professional Conduct arising out of his representation of a
family of Mexican citizens in their immigration cases. The
special master, Patrick E. Longan, recommended a public
reprimand, the Bar sought disbarment or suspension, and
Stewart sought a Review Panel reprimand. Ultimately, we find
that a public reprimand is an appropriate level of discipline
for Stewart's conduct.

The
State Bar filed its formal complaint in September 2014,
alleging violations of Rules 1.2, 1.3, 1.4, 5.3, and 5.5 (a)
of the Georgia Rules of Professional Conduct found in Bar
Rule 4-102 (d). The maximum sanction for a violation of Rules
1.2, 1.3, 5.3, and 5.5 is disbarment. The maximum sanction
for a violation of Rule 1.4 is a public reprimand. Following
a lengthy evidentiary hearing, the special master entered a
detailed report and recommendation on May 13, 2016, setting
forth the following findings of fact: A family of Mexican
citizens entered the United States legally but chose to
remain illegally. In 2008, the father asked Stewart's
non-lawyer assistant for help in hiring an attorney to
represent the family in connection with their immigration
cases. That same year, the son married a United States
citizen, and the non-lawyer assistant helped the son and his
wife prepare the documentation necessary to start the process
for the son to obtain legal status. The assistant also signed
Stewart's name to the necessary papers without
Stewart's knowledge or permission and did not immediately
tell Stewart he had done so. In January 2009, Stewart was
hired by and met with the family. During that meeting, he did
not ask the daughter whether she had been a victim of a crime
when, in fact, she had been and would have been eligible to
apply for a "U Visa, " which, if approved, would
have entitled her to remain in the United States for a
certain amount of time. And while Stewart discussed the
possibility of the daughter filing a "cancellation of
removal" form known as "42B, " the special
master ultimately found that Stewart never planned to file a
42B for the daughter (even though he withdrew her asylum
request) and erroneously filed one for the father, who was
not eligible for such relief. The special master also found
that between the January 2009 meeting and March 2013, when
the daughter collected her file from Stewart and hired new
counsel, Stewart did not communicate directly with her or the
family and that all communication went through Stewart's
non-lawyer assistant.

In
March 2011, the father died, and Stewart did not contact the
family to discuss the effect that the father's death had
on their immigration cases and did not inform the Immigration
Court of the father's death. In June 2011, Immigration
and Customs Enforcement announced a policy of prosecutorial
discretion under which certain immigration cases would be
treated as "low priority" and
"administratively closed" as a matter of
prosecutorial discretion. The special master found that the
mother and daughter informed Stewart's non-lawyer
assistant that they were not interested in taking advantage
of that policy of prosecutorial discretion because it would
not convey legal status and that Stewart took no effort to
communicate further with them about it. Then, in June 2012,
President Obama announced the policy of Deferred Action for
Childhood Arrivals ("DACA"), a program for which
the son and daughter were excellent candidates. The special
master found that although Stewart did not personally inform
the son and daughter about DACA, his non-lawyer assistant
informed the daughter about it and also told her what
documents she would need to collect for DACA; however, the
non-lawyer assistant failed to inform her that without the
documentation to apply for DACA she would have no means of
avoiding an order of deportation at her February 2013 hearing
in Immigration Court. At the February 2013 hearing, the
daughter had no alternative but to accept an order of
voluntary departure from the United States. The daughter
subsequently hired new counsel to try and reopen her
immigration case and to apply for DACA. The rest of the
family also fired Stewart.

With
regard to Stewart's efforts to ensure his non-lawyer
assistant's conduct was compatible with Stewart's
professional responsibilities, Stewart testified that he gave
his assistant checklists of what the assistant was allowed to
do and met with him regularly about Stewart's cases. As
to Stewart's supervision of his non-lawyer assistant, the
special master found that the evidence was mixed since
Stewart testified at the hearing that he tried his best to
monitor his assistant's work but in his deposition
testified that he never monitored his assistant's work.

The
special master found that Stewart violated his duties of
consultation and communication under Rules 1.2 and 1.4, but
did not violate Rule 1.3 because he did not "willfully
abandon" or "willfully disregard" a legal
matter entrusted to him or fail to act with a reasonable
degree of promptness in these clients' immigration
matters. The special master also concluded that the State Bar
failed to show by clear and convincing evidence a violation
of Rules 5.3 or 5.5 (a) in Stewart's dealings with his
non-lawyer assistant, particularly where the record showed
that Stewart instructed his non-lawyer assistant not to
practice law, that the non-lawyer assistant helped the son
apply for legal status without Stewart's knowledge or
permission, that Stewart severely reprimanded his assistant
for this conduct, and that the non-lawyer assistant had not
done anything similar since then. The special master further
found that although Stewart directed his non-lawyer assistant
to help the client family with the completion of their yearly
work permits, there was insufficient evidence to establish
that what the assistant did constituted the practice of law
or that Stewart helped his assistant in rendering these
services. The special master noted that the State Bar did not
cite any authority that the non-lawyer assistant's
essentially ministerial acts (taking passport pictures,
helping the family complete forms, collecting the necessary
fees, and filing documents with the appropriate authority)
constituted the practice of law in Georgia. Thus, the special
master concluded that the State Bar failed to show that
Stewart violated Rule 5.5 (a).

After
considering the ABA Standards for Imposing Lawyer Sanctions,
see In the Matter of Finley, 268 Ga. 251, 255 (488
S.E.2d 74) (1997), the special master found that Stewart
acted merely with negligence, and that although the evidence
did not support the conclusion that Stewart engaged in a
pattern of neglect in his failures to consult and communicate
sufficiently with these clients, it nevertheless showed that
he caused injury because his failures to consult and
communicate with the daughter left her with no choice at the
February 2013 hearing but to accept an order of voluntary
departure and because the daughter had to hire new counsel in
an attempt to protect her interests. In aggravation of
discipline, the special master pointed to the vulnerability
of the clients and Stewart's substantial experience in
the practice of law. In mitigation, the special master noted
Stewart's lack of a dishonest or selfish motive, the
negligent nature of Stewart's violations of Rules 1.2 and
1.4, Stewart's remorse, and the fact that Stewart engaged
in interim rehabilitation when he stopped taking immigration
cases and ended the employment of his non-lawyer
assistant.[1] Thus, the special master concluded that a
reprimand was appropriate under ABA Standard 4.43 (reprimand
"is generally appropriate when a lawyer is negligent and
does not act with reasonable diligence in representing a
client, and causes injury or potential injury to a
client") and that the reprimand should be public given
the aggravating factors.

The Bar
filed exceptions to the report and recommendation of the
special master, seeking disbarment or suspension and a
finding that Stewart also violated Rules 1.3, 5.3, and 5.5.
Stewart then filed a response to the Bar's exceptions,
requesting that the Review Panel adopt the special
master's report and recommendation. In the end, the
Review Panel essentially accepted the vast majority of the
special master's findings and conclusions, but unlike the
special master, it recommended that Stewart receive a Review
Panel reprimand rather than a public reprimand for his
violations.

We find
no error in the determinations of the special master and the
Review Panel that the Bar failed to prove by clear and
convincing evidence that Stewart violated Rules 1.3, 5.3, and
5.5. We likewise find no error in their determinations that
Stewart violated his duties of consultation and communication
under Rules 1.2 and 1.4, that his conduct caused the daughter
actual injury, and that his conduct was the result of
negligence. Moreover, given the specific facts of this case,
including the mitigating and aggravating factors, we find
that a public reprimand is an appropriate level of discipline
for Stewart's violations. See In the Matter of
Moncus, 296 Ga. 154 (765 S.E.2d 358) (2014) (public
reprimand for violation of Rule 1.4 where attorney had prior
disciplinary history); In the Matter of Farris, 291
Ga. 98 (727 S.E.2d 503) (2012) (public reprimand, plus
attendance at Law Practice Management Program, for violations
of Rule 1.3 and 1.4). Accordingly, we hereby order that
Thomas E. Stewart receive a public reprimand in accordance
with Bar Rules 4-102 (b) (3) and 4-220 (c).

Public
reprimand. All the Justices concur, except Melton, P. J., who
concurs in judgment only.

---------

Notes:

[1] The special master acknowledged that
Stewart has a prior disciplinary record. Stewart received a
Formal Letter of Admonition in 2002 for violating Rule 1.15
(I) by depositing settlement funds into his operating
account, although there was no allegation that he
misappropriated those funds. Later that year, he was
suspended for eighteen months for his violation of Rule 8.4
(a) (3) in connection with his misdemeanor conviction
involving a crime of moral turpitude (solicitation of sodomy
with a potential domestic relations client). Then, in 2013,
...

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